Beware of the Constantly Changing Story

It should come as no surprise that when a claimant changes the facts surrounding how their injury occurred that a major red flag should be raised. After all, that is the easiest way to determine that the claimant has a major credibility issue. Nevertheless, there are times when the claimant does not just change his or her story but attempts to allege that upon further reflection they believe the injury simply happened in a different way. In those situations, it could be tempting to believe the claimant and assume that they just did not properly assess their surroundings properly. You may believe that upon reflection they simply became aware of the true cause of the injury. Do not be fooled by this tactic!

In the case of Brenda Gray v. Henrico County Public Schools, (Aug. 13, 2021), the Commission was faced with this very issue. In Gray, the claimant alleged an injury by accident on September 27, 2018, resulting in injury to her right and left knees, and right and left lower extremities. At the hearing, the claimant alleged, that she “tripped over raised bricks and fell forward onto her knees.” Id. at 5 Therefore, her case was based upon a defect in the sidewalk as the cause of the injury.

While those seem like very straightforward facts, the Commission was not persuaded. While if true, this would certainly be the basis for a compensable injury the Commission rightly noted that the claimant’s story had substantially changed over time. Specifically, the Commission found that for over two years post-accident the claimant had alleged that she had slipped on water in the same area. According to the claimant, almost three years after the accident, she came to believe that, instead of slipping on the sidewalk covered by water it was raised bricks that caused the fall.

She claimed that upon reflection she had fallen forward onto her knees, rather than onto the rear of her body, and had noticed raised bricks in the area where she fell. She further admitted that she had inspected the area years later right before her deposition. The Commission found that there was no evidence as to whether the bricks were raised on the day of her injury and therefore found her belief to be nothing more than speculation and conjecture. Her claim was therefore denied.

It should be noted that this case is not an example of a changed story that caused the Commission to question the claimant’s credibility. It could be entirely true that the claimant believes this version of events. The real takeaway is that the changed story created a different mechanism of injury over two years post-accident. There was no way to verify the new story and the employer certainly could not have investigated the injury with any certainty with such a passage of time.

When assessing a claimant’s rendition of how an accident occurred it is important to review and compare the following:

  1. Initial statements (written or oral) to the employer;
  2. Accident reports with narratives of how the accident occurred; and
  3. Contemporaneous medical records.

Therefore, when assessing injuries with changing stories do not simply assess whether each story could support compensability, but always be mindful that a claim cannot be based upon speculation and conjecture. When the story drastically changes over time it severely limits the ability of the employer to investigate and defend the claim. Such injuries should always be denied.

Read the full Opinion

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